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SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in compliance with the law and SAFLII Policy

 

REPUBLIC OF SOUTH AFRICA

IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG LOCAL DIVISION, JOHANNESBURG

 

Case No: 2017/33269

 

In the matter between:

 

B[…] K[...]	First applicant
K[...] G[...] I[...]	Second applicant
and
S[...] M[...]	First Respondent
A[...] M[...]	Second Respondent

JUDGMENT

 

[1]  The applicants are Mr K[...] and his firm of attorneys, K[...] G[...] I[...]. The applicants seek various relief against two respondents. The first respondent is Ms M[...], a former employee who has accused the first applicant of sexual harassment and rape and, while not naming the applicants, made numerous statements about certain of the alleged conduct on social media platforms from about 4 August 2017. The second respondent, Ms M[...], is a political figure and erstwhile client of the second applicant, who associated herself with the first respondent's cause. She has also made public statements about the matter.

 

[2]  The applicants seek various relief against the respondents, in motion proceedings, including a final interdict. In summary, and without quoting the notice of motion, the interdictory relief sought includes a restraint from making statements (including to the media) to the effect that the First Respondent was sexually harassed and raped by the First Applicant while in the employ of the Second Applicant or to the effect that the First Applicant is powerful, corrupt, influential and is well connected and as such will influence the authorities from acting against him. lnterdictory relief is also sought restraining the respondents from any contact with the Applicants, coming within 200 meters of the First Applicant, coming within a radius of 200 meters of the Second Applicant's premises and the First Applicant's home and other interdictory relief relating to the giving of directions to others to harass and intimidate the First Applicant or staff of the Second Applicant.

 

[3]  The applicants also seek final relief directing the respondents permanently to remove all statements made by the respondents of and concerning the Applicants from the Respondents' social media networks, directing the respondents to issue a public apology to the First Applicant for defaming him and directing the First Respondent to issue a (prior approved) public apology to the First Applicant through the radio station Kaya FM for defaming him.

 

[4]  The application was instituted on an urgent basis on 4 September 2017 to be heard four days later on 8 September 2017. In the founding affidavit, the applicants make serious allegations against Ms M[...] including accusing her of being emotionally- unstable, creating an unhappy work environment, repeatedly resigning and then seeking to return to employment and ultimately embarking on a social media campaign in which she falsely claimed that Mr K[...] had sexually harassed and raped her while in the employ of his firm. Ms M[...] is also accused of causing intimidation in the work place through multiple threatening phone call from unknown people and approaching media including Kaya FM to broadcast the claims.

 

[5]  The respondents were informed that they should file their answering affidavits on 6 September 2017 failing which the application may be heard on an unopposed basis. The first respondent was thus afforded a short two days to file her affidavits. Only the first respondent is participating in the proceedings.

 

[6]  The first respondent deposed to her answering affidavit on 8 September 2017.In her affidavit she disputes that her charges against the applicants are false and she details allegations of a history of sexual harassment and rape while in the employ of the applicants. She details attempts to have the matter resolved at the Law Society, which she says did not regard the matter as a professional matter. She explained that on 10 August 2017, she opened a criminal case against the first applicant and referred her dismissal (in May 2017) to the CCMA. She explains that Kaya FM was interested in the matter given her comments on social media about the Law Society's failure to assist her. She denies the allegations against her regarding her impact on the work place and explains that her emotional frailty was attributed primary to the treatment she had been exposed to. She asserts a right to speak openly about her experiences in the manner in which she has noting the importance attached to ensuring that victims of rape and sexual abuse are able to have a voice in a society and speak about their experiences.

 

[7]  At the hearing of the matter on 8 September 2017, the Court made an interim order by agreement between the applicants and the first respondent that would operate pending the finalisation of the matter against the respondents. The interim interdict requires the respondents not to post any statements on social media, print media or electronic media stating that the first applicant has sexually abused or has raped the first respondent. It also interdicts the first respondent from entering the second applicant's premises at 1[…] F[…] Street, P[…] Sandton as well as the home of the applicant. The applicants were directed to file any replying affidavit in terms of the rules of Court. Importantly, the order made provision for any of the parties to re-enrol the application for hearing and directed that the costs of the application be costs in the cause.

 

[8]  Despite the lapse of some 18 months, the applicants have, to date, not filed any replying affidavit. The first respondent filed and served a practice note and heads of argument in March 2018: these were served on the first respondent on 7 March 2018 and they were filed with the Court on 15 March 2018.

 

[9]  On 21 February 2019, the first respondent re-enrolled the application-for hearing on the opposed roll during the week of 15 April 2019. The first respondent served and filed her chronology on 20 February 2019.

 

[10]  When the Registrar published the allocations for hearing of the opposed roll, the legal representatives of the parties in this matter were advised that they should attend roll call on Monday 15 April 2019 and the matter was provisionally allocated for that day.

 

[11]  On Wednesday 10 April 2019, the applicants unilaterally filed a notice of removal of the application from the roll. The notice was accompanied by a letter advising that new information had come to light, the applicants wished to supplement their founding affidavit and accordingly the matter was not ripe for hearing. On 11 April 2019, the first respondent's attorneys sent a letter to the applicants and the Court advising that they did not accede to the purported withdrawal, which they regarded as irregular.

 

[12]  On 15 April 2019, only the first respondent's legal representatives attended roll­ call. The first respondent was represented by Mr Letsele. There was no appearance for the applicants. I indicated my view that should the applicants wish the matter to be postponed, they must apply for a postponement. ln the circumstances l stood the matter down until 17 April 2019. I requested both my Registrar and the first respondent's attorneys to inform the applicants of my view. I also requested the first respondent to supply the Court with a practice note, which was filed later that day.

 

[13]  On 17 April 2019, the first applicant, who is an attorney, appeared representing himself and the second applicant. The first applicant arrived in Court late. The first respondent was again represented by Mr Letsele. At the commencement of the hearing, the applicants requested an opportunity to engage with the first respondent regarding a postponement. I was provided with no adequate explanation for the failure on the part of the applicants for failing to attend roll­ call or to instruct counsel to attend on their behalf. I was informed that counsel was engaged with the currently ongoing Commission of Enquiry into the affairs of the Public Investment Incorporation. The first applicant then sought to tender various evidence from the bar. There was no substantive application for a postponement, the first applicant informing the Court that it was not specifically communicated to him that he was required to bring a substantive application for a postponement.

 

[14]  After hearing both parties, I stood the matter down until 2pm and afforded the applicants an opportunity to prepare an application for a postponement. I indicated that the matter could proceed the following day should I decline the application.

 

[15]  The applicants then filed an application for a postponement. The first respondent opposed the application. While there was no opportunity for the first respondent to·file any affidavits, the matter proceeded on the clear understanding that the first respondent was making no admissions in respect of the allegations made in the application.

 

[16]  Mr K[...] sought to explain that he had acted under the belief on Monday 15 April 2019 that it was not necessary for anyone to attend Court as he had caused a notice of removal to be filed. As indicated above, the applicants did this unilaterally and the first respondent's attorneys had stringently objected to the unilateral removal indicating that the matter must proceed and stating that any request for a postponement must be brought substantively. Importantly however, the application was already before me and could not be removed without the leave of the Court.

 

[17]  The applicants seek a postponement on two grounds: concessions made by the second respondent and legal representation. The applicants tendered the costs of the postponement.

 

[18]  It is alleged that the second respondent has made certain concessions and apologised to the first applicant 'in relation to the fabricated a/legations that were made by the First Respondent'. The applicants wish to provide the information to the Court by way of a supplementary affidavit. No information was provided to the Court on affidavit as to when the concessions were made or why it had not been possible to provide the information to the Court to date. Suffice to point out that the Court was informed from the Bar that the information was to hand from the latest February this year.The applicants have failed to make out a case for a postponement on this ground.

 

[19]  On the issue of legal representation, the applicants explained that counsel was unable to attend the matter as the Court had directed on Monday 15 April 2019 as he had another engagement. However, there was no explanation provided as to why no other counsel could have been instructed to attend. Furthermore, it is quite clear that in fact the reason why no one had attended Court was because the applicants adopted the attitude that they could unilaterally remove the matter from the roll without further ado. I am accordingly unable to accept that the alleged unavailability of Mr K[...]'s counsel on the date is a proper basis for a postponement.

 

[20]  In the application for a postponement, however, the applicants also relied on a concern that the Court itself had raised earlier in the day relating to the fact that Mr K[...] was representing himself in this matter before me and wanted to be represented by counsel. In view of the seriousness of the issues before me and the nature of the allegations that are made against Mr K[...] in the answering papers, which include very serious allegations that, if true, may amount to criminal conduct, it would in my view occasion an injustice if I were to proceed to hear the matter without the applicants being legally represented and with Mr K[...] acting as a lawyer for himself and his firm. For this reason alone, and despite the highly unsatisfactory circumstances, I ultimately concluded that I should postpone the matter.

 

[21]  I was however not satisfied that any prejudice to the first respondent could be cured by an order for costs alone. Three issues arose which I deal with in turn.

 

[22]  First, as Mr Letsela submitted, there is inherent prejudice to the first respondent in delay as she is subject to an interim order - granted by the urgent court by agreement - that silences her in respect of her alleged suffering. The first respondent is now being prevented from having the matter finalised despite having enrolled the matter as she was entitled to do under the express terms of the order. This submission raised an important issue about the status of the interim interdict in circumstances where an applicant who has obtained the benefit of an interim interdict has not conducted the pending litigation with due expedition. The issue is of particular importance in this case given that the interim interdict serves to silence a person who claims to be a victim of rape and sexual harassment and who contends she has struggled to obtain redress from channels such as the Law Society that ought to be available to her.[1] The first respondent is silenced without any formal determination of her rights and precluded by the applicants' conduct from obtaining the finality she is entitled to seek.

 

[23]  I accordingly reserved decision on the status of the interim interdict and requested the parties to provide me with further written submissions on or before 7 May 2019 on the status of the interim interdict and its continuation pending the outcome of proceedings. I did so to afford the applicants an opportunity to request independent representatives to provide the submissions. As Mr K[...] submitted, it would defeat the purpose of the postponement if the Court were to require him to address it on the issue himself. I return to the issue reserved below.

 

[24]  Second, I was concerned that a postponement should not prejudice the first respondent's ability to have the matter finally determined without undue delay. I accordingly considered it necessary to make an order that regulated the further conduct of the proceedings.[2] As this is a case in which a person who claims to be a victim of rape and sexual harassment has been silenced from speaking publicly by an interim interdict, the Court is, in my view, enjoined under the Constitution to regulate the proceedings to ensure that rights are finally determined with due expedition. If the Court does not do so, there is a risk that the Court will itself become party to the culture of secrecy in which violence against women thrives.

 

[25]  The parties obtained a date from the Registrar of the Court which enabled me to postpone the matter until 18 June 2019 and I made an order setting out a time­ table for the filing of further affidavits and heads of argument. The parties agreed that the first respondent should be permitted to file an affidavit dealing with the anticipated new matter.

 

[26]  In the result, on 17 April 2019, I made an order:

 

26.1.  That the applicants file any replying affidavit within 10 court days, by 6 May.

 

26.2  Granting leave to the first respondent to file an affidavit dealing with the new matter by 13 May 2019.

 

26.3  Directing the applicants to ensure that the court file was properly indexed and paginated.

 

26.4  In respect of heads of argument (together with chronology and practice note) the applicants were directed to file on 20 May 2019 and the first respondent on 27 May 2019.

 

[27]  Third, I was concerned that the conduct of the applicants was such as warranted a punitive costs order. After hearing submissions from the parties and in view of the highly unsatisfactory conduct of the applicants as detailed above, I concluded that the applicants should pay the costs occasioned by the postponement on a punitive scale.

 

[27]  At the end of the hearing on 17 April 2019, and subject to decision on the reserved issue, I postponed the matter and granted an order directing the applicants to pay the costs occasioned by the postponement on an attorney and client scale.I also indicated tha.t I would in due course provide a written judgment detailing my reasons for the postponement. I have done so above.

 

[28]  I now deal with the reserved issue. As matters transpired, only Mr Letsela subsequently filed submissions as directed. No submissions were filed on behalf of the applicants. In short, Mr Letsela submitted that the interim interdict that was granted is in nature a rule nisi that lapsed upon the re-enrolment of the matter and should not be extended due to the conduct of the first respondent. He also submitted that undue delay in prosecuting the main case after obtaining a rule nisi can lead to its discharge.[3] The difficulty with the submission is that no rule nisi was issued by the Court. Only an interim interdict was granted by agreement 'pending the finalisation of the matter'. The interim interdict does not lapse upon the mere re-enrolment of the matter. In the circumstances of this case and in which the interdict was granted, I am of the view that it lapses upon the finalisation of the matter upon its re-enrolment. This should occur as a result of the matter being heard in the week of 18 June 2019.

 

[29]  However, the applicants' failure to press on with the application with due expedition is a matter of concern. In Juta & Co Ltd v Legal and Financial Publishing Co (Pty) Ltd, Van Wyk J spoke of the 'tyranny of litigation' and that 'a court of law should not allow a party to drag out proceedings unduly'.[4] The remarks were made in context of the need for expedition when instituting proceedings for an interim interdict. However, they have resonance also where a party delays pursuing the main case after the grant of an interim interdict.[5] In the Chopra matter, James JP remarked of the case before him: 'The failure to press on with the main action is a ground for doubting whether the applicant has a genuine claim and it might well be regarded as an abuse of the -procedure for obtaining relief pendente lite.' The concerns I express in paragraph 24 above about the nature of this particular matter would apply with even greater force where a party is permitted to abuse the court's procedure in this way.

 

[30]  However, while I entertain concerns about the delays in this case and the conduct of the applicants, the Court is not apprised of sufficient information on affidavit to determine whether there is any basis for the discharge of the interim interdict. I have also not had the benefit of full argument on the issue including the scope and exercise of the Court's powers in that regard. In view of the fact that the matter ought to be finally determined imminently, any ongoing prejudice to the applicants ought to be of short duration. Accordingly, the interim interdict will continue to stand for the time being. This issue may require reconsideration when the Court is next seized with the matter.

 

SJ COWEN

ACTING JUDGE

 

Appearances:

 

Applicants: Mr K[...]

 

First Respondent: Mr Letsele Second Respondent: No appearance

 

Heard: 17 April 2019

 

Delivered: 18 May 2019

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